The U.S. Department of Justice is reportedly trying to get the Equal Employment Opportunity Commission to reverse its position on whether "sex" discrimination in Title VII encompasses LGBT discrimination.

During the Obama Administration, the EEOC sued a Detroit-area funeral home chain, alleging (among other things) that the funeral home violated Title VII by discriminating against a transgender employee. (The employee, who was hired when presenting as a male, was fired after disclosing that he would be transitioning to female.) A federal district judge found in favor of the funeral home, but that decision was reversed by the U.S. Court of Appeals for the Sixth Circuit. In April, the Supreme Court agreed to review the case.

So the DOJ apparently thought the time was right to persuade the EEOC to abandon the position it took in the funeral home case and in the amicus brief it filed in Altitude Express.

We will continue to monitor. If the EEOC signs off on the DOJ brief, then that would indicate a reversal of its prior position. But, according to Bloomberg Law, an EEOC reversal is not likely. The three-member Commission would have to vote on what position to take, and one of the Republicans -- former Acting Chair Victoria Lipnic -- has indicated that she believes LGBT rights are protected by Title VII and would not vote to reverse the Commission's position. That means she and Democrat Charlotte Burrows would form a majority.

(Both Janet Dhillon, the new Chair, and Sharon Fast Gustafson, the new General Counsel, have declined to state their positions on this issue. However, GC Gustafson has said that she will do what she is instructed to do by the Commission.)

The former funeral home employee, Aimee Stephens, has intervened as a plaintiff in her case, so she and her attorneys can continue to advocate for the pro-LGBT side even if the EEOC were to back out.

Robin has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Equal Pay Act ...

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). Continue Reading